scholarly journals Democracia deliberativa, derechos sociales y la modulación del control judicial de constitucionalidad

2021 ◽  
pp. 179-197
Author(s):  
Chiara Valentini
Keyword(s):  
Deliberative Democracy ◽  
Judicial Review ◽  
Political System ◽  
Social Rights ◽  
Constitutional Theory ◽  
Controversial Issues ◽  
Third Way ◽  
Democratic Deliberation ◽  
Constitutional Review ◽  
The Relationship

Roberto Gargarella has infused into constitutional theory a deliberative approach to constitutional review and rights adjudication. By this, he has enriched our understanding of deliberative democracy as a political system in which the judiciary can play a central role, especially through the institution of constitutional review. Furthermore, he has provided us with crucial insights into the deliberative potential of this institution, shedding light on the different ways in which it may serve to secure the essential conditions of democratic deliberation. The article centers on this twofold, crucial contribution of Gargarella – to constitutional theory and to deliberative democratic theory – with a focus on the relationship between social rights and constitutional review. First, it presents the main controversial issues raised by this relationship, concerning both social rights justiciability and adjudication. Second it highlights the resources provided by Gargarella to understand and address both orders of issues, based on his account of deliberative democracy and constitutional review. Third, the article addresses the resulting view of the action of courts on social rights. In particular, it inquires into the idea of a “third way” for judicial action, requiring to modulate judicial review so as to mediate between judicial inertia and activism.

The Judicial Enforcement of Socio-Economic Rights in South Korea

2019 ◽  
Vol 12 (3) ◽  
pp. 819-836
Author(s):  
Wonil Cha
Keyword(s):  
Judicial Review ◽  
Political Process ◽  
The Political ◽  
Social Rights ◽  
Legal Basis ◽  
The South ◽  
Economic Rights ◽  
Constitutional Review ◽  
South Korean ◽  
The Welfare State

Abstract Socio-economic rights are regarded as an indispensable foundation of substantial freedom. At the same time, the embodiment of socio-economic rights in the Constitution is generally associated with concerns about their quality as a fundamental right and their judicial enforcement. The South Korean Constitution upholds the principle of the welfare state in the preamble, the fundamental social rights of Articles 31 to 36 and Article 119 (2), providing the legal basis for the regulation and coordination of economic affairs by the State. The implementation of these constitutional norms and ideals was left largely to the political process beyond judicial review for many decades. As a result of the rapid economic development, the democratization process and the introduction of constitutional review in the last 30 years, the normative discussion of basic social rights, both on societal and legal level, has taken on a new life. This article examines the South Korean Constitutional Court’s approach to judicial review in the socio-economic field with due regard to this changing reality.

A militant defence of democracy in hard times

2020 ◽  
pp. 019145372097471
Author(s):  
Seyla Benhabib
Keyword(s):  
Civil Society ◽  
Deliberative Democracy ◽  
Judicial Review ◽  
Controversial Issues ◽  
Democratic Ideal ◽  
Hard Times

Cristina Lafont gives an impressive defence of deliberative democracy against its critics. This article considers in detail her engagement with the ‘deep pluralist’ position that characterizes Nadia Urbinati’s, Jeremy Waldron’s and Richard Bellamy’s positions. After considering Lafont’s threefold argument against the deep pluralists, I contend that she vacillates between a substantialist and recursive-iterative defence of the democratic ideal. Her defence of judicial review does not consider some of the strategic ways in which civil society groups may approach the process. I conclude by arguing that constitutionalization is not always a salutary move for resolving controversial issues in a democracy.

Deliberative Democracy, More than Deliberation

2021 ◽  
pp. 003232172110326
Author(s):  
Mary F Scudder
Keyword(s):  
Deliberative Democracy ◽  
Political System ◽  
Pluralistic Societies ◽  
Open Question ◽  
The Relationship

What is the relationship between deliberation and democracy? Despite the volumes dedicated to this question, recent admissions by prominent deliberative democrats—that we need not pursue a necessarily deliberative political system, but merely a democratic one—suggest that this remains an open question. Here, I defend the deliberative model’s staying power against those who argue that it has been set normatively adrift. Addressing concerns of “concept-stretching,” I show that the deliberative model provides much more than a defense of the practice of deliberation. Indeed, its key contribution is the answer it provides to the question of what democracy itself means in large pluralistic societies. Moreover, I show that by de-centering the practice of deliberation from deliberative theories of democracy, we can acknowledge the weakness of deliberation and the strengths of non-deliberative practices, while retaining the model’s normative commitments.

scholarly journals Introduction

2011 ◽  
Vol 44 (3) ◽  
pp. 318-320 ◽  
Author(s):  
Claude Klein
Keyword(s):  
World War Ii ◽  
Judicial Review ◽  
International Association ◽  
Round Table ◽  
Theory And Practice ◽  
Constitutional Theory ◽  
Constitutional Amendments ◽  
Constitutional Review ◽  
The One ◽  
Almost All

The question discussed in the articles published in this issue of the Israel Law Review is not really new. In 1978, published an article in this review dealing with the issue. At that time, it looked much more like an academic question with very few potential practical consequences. The reason for this is clear. It was like the discussions that took place in European countries a century ago regarding judicial review (of legislation). Even those who favored it were not able to consider any form of implementation. In the absence of an established principle of judicial review, the problem looked purely theoretical. Later, after World War II, judicial review of legislation became very fashionable and conquered almost all modern occidental democracies. The question arising now is whether we can expect a similar development as regards the validity and efficacy of eternity clauses. On the one hand, there is a growing number of eternity clauses; on the other hand, we have witnessed an extraordinary development in the field of judicial review, which is the result of the general growth of judicial activism in all countries. In other words, two parallel trends are coming increasingly close to one another and will certainly give rise to a new chapter in constitutional theory and practice.In April 2010, the International Association of Constitutional Law (I ACL) held one of its two annual round tables in Jerusalem. Entitled “Unconstitutional Constitutional Amendments,” it was devoted to the issue of constitutional review. In this issue of the Israel Law Review, we present some of the papers presented at the round table by experts from various countries.

Mechanisms of Deliberation in the Formal Political System

2020 ◽  
pp. 25-51
Author(s):  
Ana Tanasoca
Keyword(s):  
Public Sphere ◽  
Deliberative Democracy ◽  
Political System ◽  
Structure And Function ◽  
Democratic Deliberation ◽  
The Public ◽  
System P ◽  
The Public Sphere ◽  
Citizen Deliberation ◽  
And Function

Chapter 2 examines the mechanisms of deliberation at work in the empowered space. The chapter discusses several institutions, such as legislatures, executive cabinets, and courts. It points out that the nature, structure, and function that these institutions fulfil in a democracy makes them poor sites for genuine democratic deliberation. Instead, the public sphere, which does not exhibit the same limitations, can better accommodate genuine democratic deliberation. Coupled with periodic accountability mechanisms to ensure it is consequential, mass citizen deliberation must be the currency of a deliberative democracy.

The Newly Established Constitutional Court in Post-Status Kosovo: Selected Institutional and Procedural Concerns

2010 ◽  
Vol 35 (2) ◽  
pp. 129-158 ◽  
Author(s):  
Visar Morina
Keyword(s):  
Judicial Review ◽  
Complex Nature ◽  
Constitutional Court ◽  
Controversial Issues ◽  
Constitutional Democracy ◽  
Constitutional Review ◽  
Lively Debate ◽  
Procedural Concerns ◽  
Constitutional System ◽  
The Right

AbstractIn this article, the author first looks at recent constitutional developments in post-status Kosovo by providing an overview of Kosovo's constitutional system from the perspective of both the Constitution and the Comprehensive Proposal for the Kosovo Status Settlement prepared by UN Special Envoy Martti Ahtisaari. The author then explores the foundations of the constitutional review in Kosovo and provides an overview of the process pertaining to the establishment of the 2008 Constitutional Court in Kosovo. After analyzing organizational and jurisdiction-related matters of the Court, the article addresses selected procedural concerns that triggered a lively debate among the framers of the Constitutional Court Act. In particular, the author addresses the right of judges to attach dissenting opinions and whether the publication of such opinions is appropriate in the context of this newly born constitutional democracy. Finally, the author concludes that the lack of a tradition of judicial review and the complex nature of certain morally or politically controversial issues related to finding a constitutional compromise—satisfying both the Settlement and the Constitution—will inevitably make the mission of the Court a very challenging one.

The Dynamics of Egypt’s “Semi-opposition,” 2004–11

2019 ◽  
Vol 12 (4) ◽  
pp. 83-103
Author(s):  
Mai Mogib Mosad
Keyword(s):  
Public Sphere ◽  
Political System ◽  
Muslim Brotherhood ◽  
The Public ◽  
The Muslim Brotherhood ◽  
The Public Sphere ◽  
The Relationship

This paper maps the basic opposition groups that influenced the Egyptian political system in the last years of Hosni Mubarak’s rule. It approaches the nature of the relationship between the system and the opposition through use of the concept of “semi-opposition.” An examination and evaluation of the opposition groups shows the extent to which the regime—in order to appear that it was opening the public sphere to the opposition—had channels of communication with the Muslim Brotherhood. The paper also shows the system’s relations with other groups, such as “Kifaya” and “April 6”; it then explains the reasons behind the success of the Muslim Brotherhood at seizing power after the ousting of President Mubarak.

A University Education

2017 ◽  
Author(s):  
David Willetts
Keyword(s):  
Higher Education ◽  
Modern Society ◽  
University Education ◽  
Modern World ◽  
Controversial Issues ◽  
The Us ◽  
The Individual ◽  
The University ◽  
First Time ◽  
The Relationship

Universities have a crucial role in the modern world. In England, entrance to universities is by nation-wide competition which means English universities have an exceptional influence on schools--a striking theme of the book. This important book first investigates the university as an institution and then tracks the individual on their journey to and through university. In A University Education, David Willetts presents a compelling case for the ongoing importance of the university, both as one of the great institutions of modern society and as a transformational experience for the individual. The book also makes illuminating comparisons with higher education in other countries, especially the US and Germany. Drawing on his experience as UK Minister for Universities and Science from 2010 to 2014, the author offers a powerful account of the value of higher education and the case for more expansion. He covers controversial issues in which he was involved from access for disadvantaged students to the introduction of L9,000 fees. The final section addresses some of the big questions for the future, such as the the relationship between universities and business, especially in promoting innovation.. He argues that the two great contemporary trends of globalisation and technological innovation will both change the university significantly. This is an authoritative account of English universities setting them for the first time in their new legal and regulatory framework.

scholarly journals Populist radical right parties, welfare policy and population health in Europe

2019 ◽  
Vol 29 (Supplement_4) ◽  
Author(s):  
C Rinaldi ◽  
M P M Bekker
Keyword(s):  
Public Health ◽  
Welfare State ◽  
Population Health ◽  
State Policy ◽  
Political System ◽  
Radical Right ◽  
The Political ◽  
Policy Agenda ◽  
The Public ◽  
The Relationship

Abstract Background The political system is an important influencing factor for population health but is often neglected in the public health literature. This scoping review uses insights from political science to explore the possible public health consequences of the rise of populist radical right (PRR) parties in Europe, with welfare state policy as a proxy. The aim is to generate hypotheses about the relationship between the PRR, political systems and public health. Methods A literature search on PubMed, ScienceDirect and Google Scholar resulted in 110 original research articles addressing 1) the relationship between the political system and welfare state policy/population health outcomes or 2) the relationship between PRR parties and welfare state policy/population health outcomes in Europe. Results The influence of political parties on population health seems to be mediated by welfare state policies. Early symptoms point towards possible negative effects of the PRR on public health, by taking a welfare chauvinist position. Despite limited literature, there are preliminary indications that the effect of PRR parties on health and welfare policy depends on vote-seeking or office-seeking strategies and may be mediated by the political system in which they act. Compromises with coalition partners, electoral institutions and the type of healthcare system can either restrain or exacerbate the effects of the PRR policy agenda. EU laws and regulations can to some extent restrict the nativist policy agenda of PRR parties. Conclusions The relationship between the PRR and welfare state policy seems to be mediated by the political system, meaning that the public health consequences will differ by country. Considering the increased popularity of populist parties in Europe and the possibly harmful consequences for public health, there is a need for further research on the link between the PRR and public health.

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
pp. 1023263X2198824
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

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